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View Diary: Harvard Law Professor Laurence Tribe: The coin would be perfectly legal (74 comments)

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  •  I guess I'm confused (0+ / 0-)

    because there are almost hundreds of cases where congress writes a law, the law is interpreted by its plain meaning, congress goes, well crap that isnt what we intended.

    What follows is not, ah well, congress didn't intend that so it's unconstitutional, instead what follows is the courts effectively saying well congress, you need to write the law better/differently, followed by congress writing the law differently/better.

    But you seem to want to say, no those cases the courts should have tried and figured out if congress really intended this result, even if a simple plain reading of the law leads to that result, and even if there is no legislative history to suggest they didn't want that result.

    It's all a "conclusion." There's nothing special about that word in this context.

    •  how many of those cases (0+ / 0-)

      involve efforts to get around other recently enacted legislation?  Or are prima facie ridiculous? The circumstance you describe works when Tribe's comments about the collective mind being hard to discren, text the best evidence, etc., really do apply, and the correction is easy.  The shift here, would require a veto override to get around.  (Not sure why you keep bringing up courts, or constitutionality as neither have anything to do with the argument.)

      What i'm suggesting that given that what we already know about what Congress intended, it calls into question whether it's really as plain as it initially appears. (I think, as a result, "denomination" has to  be bracketed by surrounding code provisions, so it's akin to the way it's used when spelled out -- has to be something like the denominations specified for gold coins.  Getting to the best meaning isn't the same as getting to the meaning with which natural language makes us the most comfortable).  

      In most cases, of course there isn't an obligation to second guess oneself as long as there is textual support, but that's only because most cases don't involve absurdities.  There is an obligation, and it's an obligation that lawyers representing the United States have to the rule of law, when the implications involve massive transfers of power from one branch to another.  At that point, it's a deliberate policy choice not to examine whether there are plausible textual interpretations of the statute that don't create fiscal black holes.  That's what i mean by "conclusion."

      Treating the analysis the way you are, as a somewhat mechanical process, is too glib.

      Difficult, difficult, lemon difficult.

      by Loge on Wed Jan 09, 2013 at 11:09:09 PM PST

      [ Parent ]

      •  they arent getting around anything (0+ / 0-)

        they are following a different law.

        Nor is it prima facie ridiculous. It's a plain reading of a law...it's the law of unintended consequences, which is something judges talk about all of the time when laws are badly written.

        This is not a "massive transfer of power" it's clearly a measure that could only be used in a limited way for a limited time.

        Nothing glib about it. Its a fair reading of the statute, and that rarely gets overturned, because then you start having the court interject what they THINK the congress meant whenever they wanted to, even when it's clear on its face, and you really, really don't want to encourage that practice.

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